SAN JOSE, California—"It's deja vu all over again," said the court reporter, when she walked into the packed courtroom of US District Judge Lucy Koh. The largest federal courtroom in San Jose was packed with reporters, observers, and lawyers who had come to watch the two "top dogs" of the smartphone world, Apple and Samsung, clash once more.

Like a few months earlier, television cameras were set up on the plaza outside the blocky concrete courthouse; court security was again holding people at the door, letting the suited masses in through the metal detectors a few folks at a time.

The most important post-trial hearing in the Apple v. Samsung patent lawsuit began promptly at 1:30p.m. today, and went on for almost four hours.

Judge Koh seemed skeptical about both Apple's desire to kick Samsung products off the market with an injunction, as well as the company's efforts to grab more than $500 million in additional damages. She also indicated she's inclined to invalidate at least one of the patents that led Apple to victory, saying that its claims might be too indefinite.

Koh barely brought up the most controversial post-trial issue—Samsung's accusations that the jury foreman lied his way on to the jury, and its request for a new trial because of that. "I think this issue has been fully briefed," she said.

But Samsung lawyer John Quinn brought up the issue just before the end of the hearing, and about 15 minutes of vigorous debate ensued. Still, Koh had a poker face, and there was no hint of how she might rule on the issue.

Apple demands a remedy for Samsung's illicit "leg up"

Apple's key goal post-trial is to get an injunction that would ban Samsung phones from the market.

There aren't many infringing phones left, though. During the hearing, Samsung lawyer Kathleen Sullivan said that out of the more than 20 Samsung phones accused at trial, only three of them—all different versions of the Galaxy S II—continue to be sold. Retailers have a stock of about 70,000 of those phones, said Sullivan.

The jury had found that Samsung phones infringed the trade dress for the iPhone 3G and iPhone 3GS, but Apple doesn't even make those phones anymore. That led Koh to an obvious question: "If you are not using the trade dress yourself, then how would Samsung's use harm Apple?" she asked.

"We have a strong sense of residual goodwill," said Apple lawyer Michael Jacobs. "The 3G and 3GS design is going to be linked to Apple for as far as the eye can see. When someone uses the 3G or 3GS in a movie or product placement, it's going to be recognized as an Apple phone—unless Samsung is allowed to dilute [our trade dress]."

Jacobs continued: "That velocity that Samsung gained in the market? That's happening today, tomorrow, and the next day. That's an onslaught. They got that leg up through the Galaxy line in 2010 and 2011, the diluting products. And that leg up? That 30 percent plus of the market they have, unless they somehow stumble badly? That continues."

Koh was still skeptical. "If it's off the market, where is the irreparable harm? It's gone."

In addition to an injunction, Apple is asking for more than $500 million in additional damages, saying that Samsung's infringement was willful.

"There has never been a case in which the evidence was so strong, and a specific product was targeted, and a specific product was copied," said Apple lawyer Harold McElhinny. "It was done by a party who had been told that the product was covered by thousands of patents, and did it in order to get an advantage."

But Koh spent much more time at the hearing asking questions about how Apple's damages might be lessened, not increased.

Apple's "tap to zoom" patent looking shaky

Koh started off the hearing by suggesting that she may find the '163 patent, Apple's patent on the iPhone "tap to zoom" feature, invalid because it's "indefinite"—in other words, too vague. It was the first issue to come up, and it immediately put Apple on the defensive.

"I find Samsung's argument on this patent persuasive," she said. "I want to know why the '163 patent is not indefinite."

Jacobs stepped up to the podium. "The legal standard is very high" to prove indefiniteness, he said. Samsung would have to show that the language of the '163 patent is "insolubly ambiguous."

Koh pressed ahead. "If I don't agree with you, what do I do with the 4G, the Replenish, and the Prevail, which were found to infringe the '163 patent as well as one or two [others]... Do we need another trial on damages?"

"I think the answer is, you don't even reach that unless you decide the verdict can't be sustained," said Jacobs.

Apple lawyer Harold McElhinny urged Koh to consider the jury's verdict as a whole, not piece by piece. Every phone that infringed the '163 patent was also found to infringe at least one other patent, he pointed out. "We were awarded less than half of what we asked for," said McElhinny. "We don't think this verdict number turns on any one patent or IP right."

"Wouldn't that be a windfall to Apple?" asked Koh. "If the jury found two or three patents were infringed, but it turns out only one or two are?"

No surprise, two Samsung lawyers, Kathleen Sullivan and Charles Verhoeven, practically jumped up to endorse the idea of a new damages trial. But Koh made clear that if there was to be a damages re-trial, it would only be for a few products. "Why do I need to re-try everything, if there aren't errors in awards for those prodcuts?" she asked.

Patent by patent, finding a way to lower damages

Whether or not the "tap to zoom" patent holds up, Koh asked questions suggesting she's likely to lower damages on a few other issues as well. She wasn't impressed by a jury calculation on the Samsung Prevail, in which the jury awarded 40 percent of Samsung's profits—despite the fact that the phone was found not to infringe any design patents.

For several other phones, including the Samsung S 4G, Showcase, Mesmerize, and Vibrant, the jury apparently calculated damages by awarding 40 percent of Samsung's profits on those phones, and adding in Apple's "lost profits" figures. (The amounts Apple experts believe Apple would have earned except for Samsung's patent violations.)

"Samsung's profits should be the sole remedy" in those cases, noted Koh. If she enforces that rule and kicks out Apple's lost profits, that would be another sharp dip in Apple's winnings.

For example, on the Fascinate, a reevaluation could result in Apple losing $47.7 million of its damage award—or about one-third of the total for that phone. On the Fascinate, the jury awarded a bit more than $143.5 million in damages. The calculation seems to be derived from taking 40 percent of Samsung's $239.5 million in profits on the phone, and adding the entire $47.7 million amount that Apple alleged in lost profits.

On one phone, the Prevail, Koh noted that the phone infringed only one utility patent—yet the jury had awarded 40 percent of Samsung's profits on the phone. "That damages award is really not authorized by law, for this product," said Koh.

Apple lawyer McElhinny, perhaps sensing that the damages discussion was not moving in the right direction, again urged Koh to consider the verdict as a whole.

"It's inappropriate to look at each one of these separate products and test whether it was correct," he said. "This reverse engineering exercise is dangerous and contrary to the law."

Koh asks: Where will it end?

"When is this case going to resolve?" asked Koh near the end of the hearing. "Is there an endpoint here? Are there some additional data points you're waiting on?

"I've said this all along, I think it's time for global peace," said Koh in one last plea for settlement. "I'm more than prepared to issue orders, you'll pick this up on appeal. But if there's any way this court can facilitate some type of resolution, I'd like to do that. It would be good for consumers, good for the industry, and I think it would be good for the parties."

The two companies still seem worlds apart, though. First, Apple's McElhinny stepped up to respond to Koh's plea.

For Samsung, these are dollars and cents decisions. They make the decision every day of how close they're going to get to the line. When the courts can catch up to them, and what happens when they do, is a mathematical calculation. They have placed their bet—successfully, so far. Look at market share. Eventually it will come to this court, and the power of this court, to establish a line. If the answer is, congratulations, you got a billion-dollar judgment—out of the 7 billion in revenues we got [from these phones]—that is the slap on the wrist.

If there's a new trial on damages, or no injunction—if you didn't see the same case that the jury saw—then I'm not sure. I'm not sure how we get a resolution.

Samsung's Verhoeven took the podium next.

As you know, our view is dramatically different. We see what Apple is doing. It's an intentional engagement of "thermonuclear war," throughout the world. It's an attempt to compete in the courthouse rather than the marketplace. [After the preliminary injunction] Apple went to our customers and misused the "colorably different" langauge, and told them they couldn't sell any of our phones. They're using any results they get through the courts to clobber our name and prevent us from competing in the marketplace fairly, on the merits.

We don't think they're trying to establish boundaries. They're trying to cloud things and use the courthouse to compete with us. From our perspective, Your Honor, we're willing to talk. The ball is in their court.

At hearing's end, Samsung slams a juror

It seemed like the issue of lead juror Velvin Hogan wouldn't even come up. And indeed, Koh never brought it up. But Samsung lawyer John Quinn did.

Quinn, who sparred with Koh more than any other attorney during the summer trial, loped up to the podium and looked down at his papers as he made his arguments. He argued for close to 10 minutes; Koh didn't make eye contact with him.

Quinn argued:

What do we know about the foreman in this case? Foreman Velvin Hogan. We know that he was dishonest when the court questioned him during jury selection. And we know from interviews that he very much wanted to be on this jury. He told reporters it was the high point of his career, the high point of his life except for the birth of his children. When he got on, he was very grateful.

He failed to give the key information about the suit he had had with Samsung's partner, Seagate.

He was dishonest. He was deliberately dishonest. We know that. It was an important issue. It was one year ago that this partnership between Samsung and Seagate was very widely publicized, picked up as headline news in newspapers around the world. Samsung became Seagate's largest shareholder, owning 12.5 percent.

He told the reporters what he did not tell this court. We have a case here that he should have been excused. We didn't have a chance to develop that. This was not a juror who was indifferent to jury service. He wanted to be on the jury.

Initially the jury was deadlocked, perhaps favoring Samsung. But overnight, he [Hogan] thought about it and had an "a-ha" moment.

Koh then asked her only question about Hogan. "He disclosed he worked for Seagate. Why didn't you ask a question during voir dire [jury selection] about his relationship with Seagate?"

"He led us to believe he had no litigation with Seagate," answered Quinn. "That would have been very important for us to know. We would have followed up on it, and likely made a case [to dismiss him] for cause. We were left with the impression there weren't any issues between him and Seagate, certainly no legal issues."

Hogan should be questioned about those issues in court, said Quinn, and the other jurors should be asked about Hogan's influence on the process. "We submit it would be an abuse of the court's discretion, at this point, not to hold a hearing."

Bill Lee, representing Apple, responded on the jury issue.

What Samsung has told you is that the jury foreman lied. Not true. They said that he was dishonest. Not true. They say he harbored a grudge for 19 years. That he knew that 11 months ago, Samsung had acquired 10 percent of Seagate. They say that it was his goal in life to get on this jury, and injure this shareholder, for something Seagate did 19 years ago. That doesn't make any sense.

We believe in the integrity of jury verdicts. The difference between now and July is that Samsung has been found by eight folks, who sat here for four weeks, to be an adjudicated infringer. They don't get the benefit of the doubt any longer, when they call Mr. Hogan a liar. He's not.

Apple's McElhinny stood up and added one last point.

"This was a hard fought case," he said. "Velvin Hogan was not involved in this case. When I read in the press that we had a juror—in a patent case—who said it was a high point for him—I thought that was terrific. I thought the court should have done an outreach film featuring him.

He urged Koh to issue a ruling on the jury issue that would make clear to the public that going after a juror post-trial wasn't right.

"This motion was just an unprofessional motion, in a case in which no stone was left unturned," said McElhinny.

Koh didn't give a hint of how she might rule on that one. "I want to thank all of you for your patience today," she concluded. "I will try to get these orders out as fast as I can."

Dozens of laptops were unplugged in seconds. The packed courtroom, and the overflow room down the hall, cleared out almost immediately.

90 Reader Comments

I know this argument has been repeated to death but just because someone might have confused a Galaxy S with an iPhone 3G out in public at first glance doesn't translate into people buying Samsung phones thinking they are getting an iPhone made by Apple.

iPhones are always showcased in a different area than other phones, and their branding is everywhere. Unless the person was unfortunately, mentally handicapped, I don't see how they could have really thought they were buying an iPhone. Unless when they say iPhone they really meant smartphone, but its 2012 and rarely see people still make that mistake.

Touchwiz, and the designs of the some of the earlier Galaxy S phones were examples of blatant copying. But you won't convinced me that people thought they were getting an iPhone. I fully support Apple suing over those phones. I just don't get the argument that they lost money over them.

Now Apple is suing over the Galaxy Nexus, Galaxy S 3, and Galaxy Note. Phones that don't have any resemblance to the iPhone. If its the software that is the problem then Apple could go straight after Google but they won't. I won't speculate why they won't.

Apple seems to think that Samsung can only make money when it copies them. The Galaxy S3 and Galaxy Note 2 are doing very well which invalidates this thinking.

Samsung should have been more original. If most of the Galaxy S phones look like the AT&T Captivate Apple would have less of a case besides Touchwiz just trying to clone iOs. I just don't know how any executive looked at the Vibrant and went "Apple is going to be totally fine with that".

What I'm trying to say is that both sides are guilty of what the other side is claim they are doing, but I don't think if Apple gets all its money or if Samsung has to pay less money they would think twice about their actions.

While Samsung should have been more original, the laws being used here were meant to stop things like people making and selling fake rolex's. No one could conceivably be confused between the two phones. They don't look identical. Fake rolexes look like a rolex. They even say rolex on them. The point is that they are selling based on the rolex name. Samsung isn't trying to sell iPhones. They don't put Apple on their devices. This trial is a waste of resources and Apple should be ashamed of themselves.

Apple needs to give it a rest. Job's desire to 'exact revenge' upon Android and Samsung is only damaging Apple's brand at this point. It is certainly putting me off of buying more from them and I have an iPad, iPod, Macbook Pro and Macbook Air all in my house. I was thinking of getting an iPhone5, but now I think maybe I'll get a Samsung Note 2. Partially because it's a bigger screen and partially because Apple is being a douche.

Wow. Koh saying that the jury award is out-and-out "not legal" is not a good sign for Apple. They're going to be working hard to keep this case in the courts, let alone pull anything out of it and it has nothing to do with juror misconduct.

Not to mention Koh may simply invalidate some of their patents when this is all said and done.

I enjoy being right, but I'm not sure I enjoy being this right. Watching an American corporation get torn to shreds isn't exactly something I want.

"That velocity that Samsung gained in the market? That's happening today, tomorrow, and the next day. That's an onslaught. They got that leg up through the Galaxy line in 2010 and 2011, the diluting products. And that leg up? That 30 percent plus of the market they have, unless they somehow stumble badly? That continues."

So *all* that "30 percent plus" of the market Samsung has happened because of the Galaxy line, Apple?

While Samsung should have been more original, the laws being used here were meant to stop things like people making and selling fake rolex's. No one could conceivably be confused between the two phones. They don't look identical. Fake rolexes look like a rolex. They even say rolex on them. The point is that they are selling based on the rolex name. Samsung isn't trying to sell iPhones. They don't put Apple on their devices. This trial is a waste of resources and Apple should be ashamed of themselves.

Supporters of either Apple or Samsung should want both companies to compete in the marketplace by improving their phones, adding new and innovative features, and driving down costs. They shouldn't be trying to block each other's phones from reaching the stores, it almost seems like they would rather fight expensive legal battles to gain a monopoly over the market than serve their customers.

The overall effect of this trial is for both companies to run up large legal bills which will probably end up translating into higher priced phones, and it's bad for phone owners in general, regardless of which particular brand is their favourite.

It seems Apple has confused people using iPhone/iPad as a generic term for those types of devices as people only wanting Apple products. My own parents bought a Galaxy Tab, chose it because they liked the device best, call it a Samsung iPad but know it's not an 'Apple.'

Apple created (well not really, Linksys had the 'iPhone' well before Apple) catchy generic names, they did not create the only product people really want.

I hope the outcome of this is that Apple stops its hubris, and goes back to their roots. Making great and innovative products. However, they seem to have stagnated of late. Their strength is in execution and integration, so hopefully Tim Cook steers the ship well while Jonathan Ive searches out new horizons for Apple.

As for Samsung, there's no doubt in my mind that they started out mimicking the iPhone. I'm just not convinced that it damaged Apple in "unfair competition" like they claim. The galaxy line has come a long way. Back in the early days the stock roms were plain fugly and slow. Their software ecosystem (Samsung store, updates) are still terrible but fortunately the modding community has matured sufficiently to pick up the slack.

Here's to greater competition, innovation and greater products for consumers!

Seems to me that the judge is doing everything she can to reduce the verdict as much as she can. probably hoping to reduce Samsungs zeal during appeal. My understanding is that this is her first real big case, and frankly the way she ran he trial was quite erratic. Given her newness to the Federal bench, a reversal and removal from this case ( and probably the other Apple vs Samsung case ) would be career suicide.

It was after all her mistake that let Hogan lie in the first place. He probably wouldn't have had the testicular fortitude to outright lie, although he was going to do everything he could to avoid mentioning his previous lawsuits. That's why she couldn't look Quinn in the eye.

After all she knows tbat outside her courtroom Apples legal fight against alleged Samsung copying has been going nowhere. Shoot Apple even admitted that Samsung didn't copy on their home page.

"When I read in the press that we had a juror, in a patent case, who said it was a high point for him—I thought that was terrific. I thought the court should have done an outreach film featuring him."

I don't understand how this view from Apple's legal team is not even more damning of the foreman than everything the guy himself has said. People are not meant to want to be on jury duty, that suggests they have a stake in it at all, one way or another. These people are meant to be impartial, and look at the facts.

I know this argument has been repeated to death but just because someone might have confused a Galaxy S with an iPhone 3G out in public at first glance doesn't translate into people buying Samsung phones thinking they are getting an iPhone made by Apple.

I do find that a strange argument and am surprised it got through in court (but that may be because it was decided by a jury, and that the burden of proof in civil cases are considerably less).

By the same argument, most people can't tell one car from another (apart from the color). Does that mean that cars are infringing on design patents? Besides, I think the big apple logo on the back of one of the devices would be a big giveaway. I'd imagine that a good proportion of people who buy an apple is because.... well, it's an apple. Its like people preferring Sony for TVs, or maybe HP (vs ASUS) for computers. The brand and the logo sells. In HK, most girls buy Gucci/Prada/LV because of the logo, not because the items are particularly well made for the price

"When I read in the press that we had a juror, in a patent case, who said it was a high point for him—I thought that was terrific. I thought the court should have done an outreach film featuring him."

I don't understand how this view from Apple's legal team is not even more damning of the foreman than everything the guy himself has said. People are not meant to want to be on jury duty, that suggests they have a stake in it at all, one way or another. These people are meant to be impartial, and look at the facts.

How the hell is Apple getting away with this?

Are they meant to be impartial? Or simply a representation of their peers.

If you wanted impartiality, I would choose a judge, who are trained to be impartial. Besides, you can never get impartiality in the USA in a case of an American company vs South Korea. If you are talking about bias, Samsung would be doomed

"When I read in the press that we had a juror, in a patent case, who said it was a high point for him—I thought that was terrific. I thought the court should have done an outreach film featuring him."

I don't understand how this view from Apple's legal team is not even more damning of the foreman than everything the guy himself has said. People are not meant to want to be on jury duty, that suggests they have a stake in it at all, one way or another. These people are meant to be impartial, and look at the facts.

How the hell is Apple getting away with this?

Are they meant to be impartial? Or simply a representation of their peers.

If you wanted impartiality, I would choose a judge, who are trained to be impartial. Besides, you can never get impartiality in the USA in a case of an American company vs South Korea. If you are talking about bias, Samsung would be doomed

Having this decided by judge has been my idea of a much better solution all along. I haven't seen anything explicitly stating that jurors have to be impartial, but the fact they are not allowed to do their own research or talk to anyone about the case suggests to me that they are meant to be blank minds, taught all they need to know relevant to the case, and then make an opinion based only on that.

Now, I don't really buy that the foreman was out to harm Samsung, nor do I believe that he is a mad Apple fanboy or anything, but I don't doubt for a minute that he is biased towards patents and the patent system. The fact that this jury duty is a high point in his life (comparable to the birth of his fucking children), and he is on the record as stating that he/they wanted to teach Samsung a lesson (totally against what the law states in this case), is incredibly damning in my eyes, and I can't see how Samsung haven't already been granted a retrial.

I like that the comments about the trial are sounding less fanboyish, but I have yet to hear anyone, even the attornies for Samsung, take-up the position that while Apple and Samsung make "smartphones" they don't actually compete in the same marketplace. Apple has the iOS and it's own app store (which not so ironically they are now trying to claim as exclusive domain for all things "App"), or taken even further, it's own culture of users. some say it is closed-off, others say it's very holistic. Samsung makes a phone and slaps their own UI on it, but Google "does" the OS and place to buy applications that work with said OS.

With everyone wanting to use CSS to make rounded corners before Apple cornered the market, the only infringement I can see is with the TouchWiz aspect, for which Samsung is fully in the wrong. $350M fine. Case closed.

Samsung needs to admit their *first and primary goal* was to clone the Apple iPhone. Period.

That they succeeded and now are leveraging their market position based on that crappy approach is just crap. That's like saying I built my market on your product, but now we're making product that's different.

Their attorney is so full of it. Attacking Apple on not competing in the market? What junior high school graduated Samsung's attorney? It presupposes Samsung build *anything* of value before iPhone, which clearly they didn't. Today after robbing Apple's ideas an innovation they are continuing to claim the are an innovator.

It'll be a cold day in hell before I buy anything made by Samsung. 10 years ago they were an growing ethical competitor. Today they've become a crappy knock-off company hiding behind 8th grade arguments that demonstrate their capability to lie, steal and cheat.

Owning up, paying their dues, and then saying they are ready to license whatever tech they should from Apple is the right way to deal with this. Samsung has created a steaming pile of crap in PR. And unlike the hidden businesses out there making TVs, making small handheld computers engaged intelligent, balanced, engineers, not your ordinary consumer. So Samsung is dropping that heap of steaming goodness right under our shoes and calling it a real fine stew. Maybe for Samsung buyers, but time will prove they've missed the boat with their 'legal' team's PR notion. Poor Samsung just wants to innovate.

Well, were the f was that idea 5 years ago?

I have yet to see any journalist contribute the success of the Galaxy S line purely on them copying Apple. Unless you can provide reasonable arguments as to why you think that is true, the only thing you will accomplish is being down-voted or de-rolling the discussion. There nothing stopping you from taking the position that Samsung copied without declaring that Samsung never innovates on its own. Look at the Galaxy S3 and Galaxy Note 2, and show me Apple's influence.

You have to realize that Samsung produces processors, displays, flash storage, etc that even Apple buys.

Maybe you think since Apple produced the iPhone first, that no other company can call their phones innovative. I think that's a narrow minded view to take.

"When I read in the press that we had a juror, in a patent case, who said it was a high point for him—I thought that was terrific. I thought the court should have done an outreach film featuring him."

I don't understand how this view from Apple's legal team is not even more damning of the foreman than everything the guy himself has said. People are not meant to want to be on jury duty, that suggests they have a stake in it at all, one way or another. These people are meant to be impartial, and look at the facts.

How the hell is Apple getting away with this?

Normal people don't want to waste their time by being on a jury. This foreman in the Apple v Samsung trial is a professional juror. This was not his first time on a jury and certainly not his first time in court. When you get someone who _wants_ to be on a jury, there is something fishy going on.

To an equally large multi-billion dollar empire that spans every imaginable industry and has been accused and even found guilty (yet somehow pardoned) of fraud, corruption, tax evasion, and price fixing, just to name a few. Compared to Samsung, Apple is a saint.

When someone from Samsung sets up a shell company to give a house to a doctor, so that he can steal a liver transplant from a little girl, then I will consider them equally evil.

In case people don't know, the doctor that did the liver transplant for Steve Jobs bought Steve's house for a very good price through a shell company.

The story here is not about people getting confused when they're shopping for a new phone. Although at German court some months ago, Samsung's lawyer couldn't tell the difference between the iPad and the Galaxy tablet.

The point is that iPhone was the first commercial product that used multitouch displays and used completely new way of navigating the UI. I've been using touch screen devices since 1999, starting with Philips Nino, going through a series of Palms and Handspring Treos. I even briefly used a touch-screen ruggedized Panasonic laptop.

There was no Slide-to-unlock before the iPhone - single-touch screen technology didn't allow it, you always have to use a key (or combination) and password/pin to unlock the screen. Pinch to zoom? Nope, hardware keys were required. Scrolling using the gesture? Nope, tap the arrows at scroll bar's ends with your stylus or use the hardware buttons. Moving between screens? Buttons, of course, or stylus on a Menu bar.

If Apple had those UI features pattented, which they did, and Samsung used them in their product without permission, then I don't see there are two ways about it. They used someone else's technology to advance their products - being spared the need to develop or licence them.

P.S. If you question patents per se, I remind of the Apple vs Creative case where Apple lost following Creative applying their pattent on "organizing items in the playlist by the alphabet". The pattent still stands - and it can be argued, that Creative had patented the alphabet.

Samsung needs to admit their *first and primary goal* was to clone the Apple iPhone. Period.

How can that be when Samsung didn't copy Apple. Hell Apple even said Samsung didn't copy on the front page of their website.

I'm curious though how you justify Apple taking and copying all that technology that companies like Motorola, Samsung, LG, HTC, Nokia, etc spent two decades developing and not even pay Samsung for it's part of the tech?

If I was to serve as a juror on a high profile case like this, it'd probably be a high point of my life too. Such a citizen might actually be an honorable one, interested in the shaping of society and enforcing the law. I really fail to see why this is supposed to be wrong and why it's damnifying for someone to want to be on a jury. And, him being on several juries indicate that he has a special interest in the court system, not necessarily this case in particular. This is also something that was known beforehand and something that Samsung's lawyers let pass. It's pretty strange that people here are second guessing highly trained professionals in this matter.

What's new to me now is that it was known to Samsung that the foreman worked with Seagate. If Samsung was honest in their picking of the jury, how come they didn't find this biased in their favor? Especially since they are trying so hard to connect Seagate and Samsung as if they were almost the same company. If this was damningly obvious bias, as Samsung are trying to argue after the fact, why didn't they raise the flag before? Why didn't Apple?

People _do_ confuse Samsungs with Apples. Evidence in this case showed that second most common reason for returns to Best Buy was due to the fact that they thought they'd bought an Apple product. This isn't Apple making stuff up, this was Samsung's own documents. When Judge Koh asked Samsung's own lawyers to identify which tablet was an iPad and which was a Galaxy Tab, they couldn't do it.

Compare that to plagiarizing Rolexes. I don't think many of those who buys fake Rolexes think they are actual Rolexes, they just want to get something nearly identical looking, but much cheaper. In this case, it was much worse since the customer was actually harmed by the plagiarism of Samsung and Samsung's own people couldn't separate them.

If Samsungs explicit design inspiration was Apple's products, if their biggest partner warn them against plagiarism, they confuse their own lawyers and their customers are fooled by the finished product. how can it _not_ be plagiarism?

The point is that iPhone was the first commercial product that used multitouch displays and used completely new way of navigating the UI. I've been 0 using touch screen devices since 1999, starting with Philips Nino, going through a series of Palms and Handspring Treos. I even briefly used a touch-screen ruggedized Panasonic laptop.

There was no Slide-to-unlock before the iPhone - single-touch screen technology didn't allow it, you always have to use a key (or combination) and password/pin to unlock the screen.

Slide to unlock by nature only requires one point of touch. Given it requires one finger to slide across the screen what makes you think it requires multi-touch. In both Dutch and U.K. courts this particular patent was thrown out for obviousness and prior art (the Neonode N1)

Me, Myself And I wrote:

Pinch to zoom? Nope, hardware keys were required.

Fair point, though I would point out that Apple did not come up with it either, the patents in question come from fingerworks.

Me, Myself And I wrote:

Scrolling using the gesture? Nope, tap the arrows at scroll bar's ends with your stylus or use the hardware buttons. Moving between screens? Buttons, of course, or stylus on a Menu bar.

Multiple third party apps had this in Windows Mobile. The appointment desktop element (I believe by spb) is an example. What they did not have was kinetic scrolling.

Me, Myself And I wrote:

If Apple had those UI features pattented, which they did, and Samsung used them in their product without permission, then I don't see there are two ways about it. They used someone else's technology to advance their products - being spared the need to develop or licence them.

P.S. If you question patents per se, I remind of the Apple vs Creative case where Apple lost following Creative applying their pattent on "organizing items in the playlist by the alphabet". The pattent still stands - and it can be argued, that Creative had patented the alphabet.

Creative did not patent the alphabet. They patented navigating a musical collection in a heirarchical, drillable format (i.e. Artist, album, song as an example). I debate the validity of the patent but it was not involving organizing a list in alphabetical order.

People _do_ confuse Samsungs with Apples. Evidence in this case showed that second most common reason for returns to Best Buy was due to the fact that they thought they'd bought an Apple product. This isn't Apple making stuff up, this was Samsung's own documents.

Samsung's documents showed that 9% of returns were for exchange for an iPad. Only a subset of those returns were due to customer confusion. So yes, there were cases of customer confusion, but no, it was not the second most common reason for returns.

For years Apple was No 2 in marketshare/relevance behind the IBM/PC, which morphed into the Windows/PC.

Apple had locked down hardware etc, the IBM/PC - Windows/PC ran on any hardware. The open platform model won.

Now Apple has it's locked down platform with the iPhone, vs the more open Android. Do you see a pattern?Apple does... Apple's execs had a taste of what it's like on top and want to hold on to it. They don't want to repeat the last two decades and again be just No 2 trailing a dominant Android platform.

Apple has money - but there is a limit to just how innovative one company can be - If it can use that money to slow slow down the competition then it makes business sense to do so. I hate it, I think it's disgusting that the current state of the law allows such anti competitive behaviour. But given that it appears Apple can get away with it, it makes sense for them to do so.

Samsung's documents showed that 9% of returns were for exchange for an iPad. Only a subset of those returns were due to customer confusion. So yes, there were cases of customer confusion, but no, it was not the second most common reason for returns.

Is it clear that there was customer confusion? How do they know that people returning Samtabs becajuse they were not iPads did so because some sales clerk answered the question "Can it run iPad applications?" with a yes. In that case there is no confusion, but the person would return it saying "it is not an iPad".

If I was to serve as a juror on a high profile case like this, it'd probably be a high point of my life too.

Yes it would be interesting, but would you introduce your own evidence to the other Jury members by describing your own make believe rights as a patent holder?

Would you explain points of law regarding patents which are in direct conflict with the jury instructions the Judge provided?

Trial by Jury is an important concept which deserves protecting, but for cases such as this one I think it has no value whatsoever. How can a handful of people spend a couple of weeks learning all the details in a courtroom and then be expected to make a correct, fair ruling?

I don't know what the solution for these types of disputes should be. Maybe it should be a function of the patent office to also act as a tribunal on patent infringement and what the dollar value attributed to that infringement should be.

With everyone wanting to use CSS to make rounded corners before Apple cornered the market, the only infringement I can see is with the TouchWiz aspect, for which Samsung is fully in the wrong. $350M fine. Case closed.

Early TouchWiz. TouchWiz today bears very little, if any, resemblance. (Despite what "tech" sites like BGR try to imply by always showing it opened to the app drawer, scaled down to the same size and sitting next to an iPhone)

I don't know what the solution for these types of disputes should be. Maybe it should be a function of the patent office to also act as a tribunal on patent infringement and what the dollar value attributed to that infringement should be.

You want to let the guys who decided that these patents are original, innovative and unique to stand in judgement of infringement? Isn't that like letting the inmates run the asylum?